FCC Strikes Another Nail in State's Rights

The Federal Communications Commission is confusing states’ rights advocates as it continues to centralize power over Internet service providers, telco and cableco operators in Washington, D.C., not Albany, Tallahassee, Sacrament or other state capitals.

Hours after California Governor Jerry Brown signed a new net neutrality bill into law on Sunday, the Department of Justice filed suit to ensure the Federal Communications Commission’s decision to reverse the 2015 rule remained the law of Golden State. And, of course, to show other state leaders it’s willing to use its large budget to make certain all 50 states in the union abide by the FCC decision, a move the Commission had expressly prohibited.

We conclude that the Commission has legal authority to preempt inconsistent state and local regulation of broadband Internet access service on several distinct grounds. First, the U.S. Supreme Court and other courts have recognized that, under what is known as the impossibility exception to state jurisdiction, the FCC may preempt state law when (1) it is impossible or impracticable to regulate the intrastate aspects of a service without affecting interstate communications and (2) the Commission determines that such regulation would interfere with federal regulatory objectives.

This could have been one of the top topics in contention during Judge Brett Kavanaugh's confirmation hearing. But, as we know, it wasn't.

Centralized control
But did the FCC overstep its boundaries when it preempted local authorities this year by setting a price-range local authorities can charge telcos for small cell pole attachment? Under the ruling, cities can charge “no greater than a reasonable approximation of their costs for processing applications and for managing deployments in the rights-of-way” and local authorities have up to 60 days to review permit applications, according to the Commission.

Yes, some cities charge a lot: New York City, for example, set a minimum $4,200 annual lease per pole, according to the Wall Street Journal. Higher bidders will get access to better locations, the reporter wrote. That is Manhattan real estate for you, WSJ. Some of your readers make their money this way.

The small towns -- ones with a handful of staff whose budgets were slashed during the last recession and never added back the headcount -- are the ones who most likely will suffer most under this directive from DC. Already less attractive than NYC, Los Angeles, Atlanta or Miami, these midsize towns now have another set of rules to address without any potential windfall -- and by windfall, I don’t mean $4,200 a year per pole.

If towns don’t price correctly, providers can fight back without the FCC’s big stick. As a Bellevue, Wash.-based resident wrote to the WSJ, because he lives in an area where exposed wires are banned, the wireless provider and utility are teaming up on poles they will “call streetlights” to prepare for 5G.

Living in an area prone to hurricanes and tropical storms, and a huge advocate of underground cabling for those and other reasons, I empathize with that author. No doubt, the FCC will, in its infinite wisdom and knowledge of all that is good for us, soon come out with a law banning underground cabling. After all, rewiring everything a few times a year provides jobs and boosts the economy. Who cares about the consumers, sitting in the dark, hundreds of miles away from the unelected officials changing the country from DC?

The number and power of Britain's so-called altnets is growing, increasing access to fiber-based gigabit broadband for residents and businesses where incumbents such as BT, Virgin and Openreach did not deliver.

After NTIA asked for public comments on map improvements in October 2018, the FCC decommissioned the agency's broadband map in early December but did not say whether it will use any of the public's great ideas on its own (largely panned) map.

The case of Mozilla v. FCC is slated to begin in the D.C. Circuit Court on Feb. 1, marking what's expected to be the beginning of a protracted legal battle that may continue well into the 2020 presidential race.

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